Professor Pieter Jan Kuijper from Amsterdam University explores this relation in his recent study “Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO” published by the International Centre for Trade and Sustainable Development (ICTSD). In this paper, the tool kit available under international law to solve such disputes is discussed through a large number of references to exiting or potential cases.
Professor Kuijper concludes his paper with a list of concrete recommendations to negotiators, litigators, courts and countries. Amongst others, he proposes increased attention on the principle of mutual supportiveness - an wording found in an increasing number of environmental agreements. Moreover, he makes some concrete observations on so called “fork-in-the-road provisions” in free trade agreements and develops recommendations for the inter-regime coordination of international tribunals and the application of comity or litispendence in international courts:

“The application of WTO law may require that the interpretative principle of mutual supportiveness is applied to the relevant WTO rules, which does not imply non-application of WTO law, but application in a restrained way that would not harm the object and purpose of the WTO Agreements.”

“In the interest of the stability of international rule making and governance, international courts and tribunals in neighboring fields, like trade, investment, the environment etc. need to develop a doctrine of “forum non conveniens” between themselves, or at the very least use their inherent powers to abstain from exercising jurisdiction or rule on admissibility if there are serious reasons to do so.”

Please access the study here.
The study will also be presenting during ICTSD’s upcoming event on “Coherence and Compliance: MEAs, FTAs and the WTO” on 12 November, 2010 at 12:30 at the WTO Room A. Please enter the event web page here.

Contact: Ahmed Abdel Latif

The climate implications of export-led growth in emerging economies, the potential barriers that intellectual property may pose for access to clean technologies in developing countries, the possibility of carbon leakage between countries with stringent versus lax climate regulations, and the carbon footprint of the emerging trade opportunities in niche markets for low income countries are at the core of the debate. In the WTO, climate change concerns have also been explicitly referred to in the context of ongoing negotiations on environmental goods and services.